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Taja Singh vs Gursharan Kaur And Ors. on 12 November, 2002

Punjab-Haryana High Court
Taja Singh vs Gursharan Kaur And Ors. on 12 November, 2002
Equivalent citations: (2003) 133 PLR 158
Author: V Jain
Bench: V Jain


JUDGMENT

V.M. Jain, J.

1. This Regular Second Appeal has been filed by the plaintiff against the judgments and decrees of the Courts below, whereby the suit, filed by the plaintiff, was dismissed by the trial Court and the appeal, filed by the plaintiff and the cross-objections, filed by the defendants, were also dismissed by the learned Additional District Judge.

2. The facts, in brief, are that Teja Singh, plaintiff, filed a suit for declaration to the effect that he was owner of the land measuring 36 kanals 8 marlas, alleging therein that originally one Dyal Singh was owner in possession of the suit land and after his death, Bhagwan Singh, father of the plaintiff and Shamsher Kaur, defendant, inherited the same and that said Bhagwan Singh, during his life-time, had willed away the suit property in favour of the plaintiff, by virtue of the Will dated 25.3.1959. It was alleged that Bhagwan Singh died on or before 29.4.1959 and the land was mutated in favour of the plaintiff and defendant No. 1 in equal shares, even though the plaintiff was entitled to the entire land as per Will dated 25.3.1959. It was alleged that after the death of Bhagwan Singh, the plaintiff continued to be in possession of the entire land and the defendant, taking advantage of the entries in the revenue record, started asserting her claim to the extent of 1/2 of the suit land and trying to alienate the same. In the alternative, it was pleaded that if the will was not proved, the plaintiff was owner to the extent of 3/4th share, as the property was ancestral and coparcenary property of the plaintiff and his father. Bhagwan Singh, who constituted a joint Hindu family and on his death, 1/2 of the land, owned by Bhagwan Singh, would be inherited by the plaintiff and defendant in equal shares, whereas the other 1/2 share would go to the plaintiff, being a coparcenar. In the written statement, filed by the legal representatives of Shamsher Kaur, defendant the execution of the Will, by Bhagwan Singh, in favour of the plaintiff, was denied and it was alleged that it was a forged documents. It was also denied that the suit property was ancestral and caparcenary property qua the plaintiff and that the plaintiff was entitled to 3/4 share. On the pleadings of the parties, the learned trial Court framed various issues.

3. After hearing both the sides. The learned trial Court held that the property in dispute was the ancestral property. However, the suit of the plaintiff was dismissed, holding that the suit was barred by time and that the possession of the plaintiff, over the suit land, shall be deemed to be as co-sharer and he could not be said to be in exclusive possession. It was further held that the plaintiff was entitled to only 1/2 share and not 3/4 share, as claimed by him. Resultantly, the suit was dismissed. Aggrieved against the same, the plaintiff filed appeal, whereas Ranjit Singh, one of the LRs of Shamsher Kaur, defendant, filed cross-objections. After hearing both the sides, the learned Additional District Judge dismissed the appeal and the cross-objections, upholding the findings of the trial Court. Aggrieved against the aforesaid judgments and decrees of the Courts below, Teja Singh, plaintiff, filed the present Regular Second Appeal in this Court.

4. I have heard learned counsel for the parties and have gone through the record carefully.

5. It was submitted by learned counsel for the plaintiff-appellant that the suit property was held to be ancestral and Teja Singh, plaintiff, was a coparcener with his father, Bhagwan Singh, in the suit property. It was submitted that on the death of Bhagwan Singh, Teja Singh would inherit 3/4 share, while the 1/4 share shall go to Shamsher Kaur, defendant. It was submitted that the Courts below had erred in law in ignoring the claim of the plaintiff to the extent of 3/4th share.

6. After hearing counsel for the parties and perusing the record, in my opinion, the following substantial questions of law have arisen in the present Second Appeal:-

i) Could the suit, filed by the plaintiff, be held to be barred by time, even though it was a suit based on inheritance and the plaintiff was found to be in possession of the suit property, may be as co-sharer;

(ii) Could the plaintiff be estopped from filing the present suit, claiming 3/4th share instead of 1/2 share, merely because in the surplus area proceedings, he had taken the plea that he had inherited 1/2 share in the suit property, after the death of Bhagwan Singh.

7. As referred to above, both the Courts below had found that the Will in question was not proved. Learned counsel for the plaintiff-appellant, at the outset, had submitted before me that he was not challenging the findings of the Courts below on issue Nos. 1 and 2, regarding the Will in question and that his claim was only in respect of 3/4th share in the land in dispute, on the plea that the suit property was ancestral and that he had 1/2 share in the suit property during the lifetime of his father. Bhagwan Singh and that on the death of Bhagwan Singh, he had inherited 1/2 share of the 1/2 share held by Bhagwan Singh and thus, he had 3/4th share in the suit property, whereas defendant, Shamsher Kaur, had inherited only 1/4th share.

8. Reliance was placed on the law laid down by the Hon’ble Supreme Court in the case reported as Smt. Raj Rani v. The Chief Settlement Commissioner, Delhi and Ors.1 A.I.R. 1984 Supreme Court 1234. Reliance was also placed on the law laid down by this Court, in the cases reported as Raj Rani v. Radhey Shyam and Anr.,2 (1994-2)107. The Punjab Law Reporter 681, and Babru son of Chet Ram v. Basakha Singh and Ors.,3 (1995-3)111 The Punjab Law Reporter 177. In the other hand, it was submitted before me by learned counsel for the respondents that no substantial question of law was involved in this Appeal and as such, the Appeal was liable to be dismissed.

9. After hearing counsel for the parties and perusing the record. I find great force in the submissions raised by learned counsel for the plaintiff-appellant.

10. The learned trial Court, while deciding issue No. 7, had held that the property in dispute was the ancestral property, inasmuch as one Dayal Singh, father of Bhagwan Singh, was owner in possession of this land and after his death, Bhagwan Singh had succeeded to the estate of Dyal Singh and in this manner, the suit property was the ancestral property of the plaintiff and the defendant. Shamsher Kaur. This finding, given by the learned trial Court, was challenged by Ranjit Singh, one of the LRs of Shamsher Kaur, defendant, by way of cross-objections. However, the learned Additional District Judge, while dismissing the Appeal of Teja Singh, plaintiff, had also dismissing the cross-objections and had upheld the findings of the learned trial Court on issue No. 7. The findings of the Courts below on issue No. 7 have not been challenged before me during the course of arguments. Thus, the present appeal has to be decided keeping in view the fact that the suit property was the ancestral property of the parties and their father, Bhagwan Singh.

11. Once it is found that the suit property was the ancestral property and the plaintiff and his father, Bhagwan Singh, had constituted a joint Hindu family, it would be presumed that Teja Singh, plaintiff, had 1/2 share in the property and Bhagwan Singh had 1/2 share. On the death of Bhagwan Singh, his 1/2 share in the suit property would be inherited in equal shares by his son, Teja Singh, and daughter, Shamsher Kaur, in view of the provisions of Section 6 of the Hindu Succession Act. In this manner, the plaintiff would get 3/4th share in the coparcenary property, whereas Shamsher Kaur, defendant, would get l/4th share. Reliance in this regard may be placed on the law laid down by the Hon’ble Supreme Court in the case reported as Smt. Raj Rani v. The Chief Settlement Commissioner Delhi,1 A.I.R. 1984 Supreme Court, 1234 (supra) and the law laid down by this Court in the cases reported as Raj Rani v. Radhey Shyam,2 (1994-2)107 P.L.R. 681 (supra) and Babru son of Chet Ram v. Basakha Singh,3 (1995-3)111 P.L.R. 177 (supra). Since the Courts below had failed to apply the law regarding the coparcenary properties and the provisions of Hindu Succession Act, this would be a substantial question of law on which this Court in Second Appeal can interfere with the findings of the Courts below. Accordingly the findings on issue No. 6 are reversed and it is held that the plaintiff is entitled to 3/4th share in the suit land.

12. It has then been submitted by learned counsel for the plaintiff-appellant that the Courts below had erred in law in holding that the suit filed by the plaintiff was beyond limitation and that the plaintiff was estopped from filing the present suit by his conduct. It was submitted that the plaintiff being in possession of the suit property, was entitled to file the present suit for inheritance to the extent of 3/4th share and that the sanction of the mutation to the extent of 1/2 share, each, in favour of the plaintiff and the defendant could not be taken as the starting point of limitation of three years for filing the present suit. There is considerable force in this submission of the learned counsel for the plaintiff-appellant. The plaintiff is in possession of the suit property since the death of his father, Bhagwan Singh. Even if his possession is taken as the possession of a co-sharer, on behalf of the other co-sharers, still it could not be said that the suit is barred by time, merely because it has been filed three years after the mutation had been sanctioned to the extent of 1/2 share each. The plaintiff had filed the present suit, on the basis of title and it could not be said that the suit was barred by time. Mere sanctioning of the mutation would not give the limitation of three years for the plaintiff to file such a suit. Learned counsel for the appellant-respondents could not point out any provision of law under which the suit filed by the plaintiff, could be termed as barred by time merely on the basis of the mutation. Accordingly, I reverse the findings of the Courts below on issue No. 3 and hold that the suit is not barred by limitation.

13. So far as the plaintiff, being estopped from filing the present suit is concerned, in my opinion, both the Courts below erred in law in holding that the plaintiff was estopped from filing the present suit. Merely because, during the surplus area proceedings, Teja Singh, plaintiff, and Shamsher Kaur, defendant, had filed returns before the revenue authorities, claiming 1/2 share each in the property left by Bhagwan Singh, by itself would not be sufficient to hold that Teja Singh, plaintiff had given up his right on the suit property to the extent of 3/4th share instead of 1/2 share. In my opinion on the facts and circumstances of the present case, the principal of estopped would have no application to the facts of the present case. In fact, the learned trial Court had decided issue No. 5 against the plaintiff, on the basis of the Will in question. Similar is the position in respect of the finding of the Lower Appellate court on issue No. 5. Both the Courts below decided issue No. 5 against the plaintiff, on the ground that the plaintiff was now estopped from claiming ownership on the basis of the Will in question. As referred to above in the present appeal, the question regarding the validity of the Will in question is not before me. On the other hand the claim of the plaintiff is on the basis of inheritance considering that the suit property was ancestral property and the plaintiff was coparcener with his father, Bhagwan Singh. Under these circumstances, in my opinion, it could not be said that the plaintiff was estopped from filing the present suit claiming 3/4th share instead of 1/2 share in the suit property. Accordingly I reverse the findings on issue No. 5 and hold that the plaintiff is not estopped from filing the present suit.

14. No other point has been urged before me in this Appeal.

15. For the reasons recorded above the present Appeal is allowed, the judgments and
decrees of the Courts below are set aside and the suit of the plaintiff is decreed to the
extent that he is owner in possession to the extent of 3/4th share whereas the LRs of defendant. Shamsher Kaur, would be the owners to the extent of 1/4 share. However, there
shall be no order as to costs.

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